You and your spouse have made the difficult decision to file for divorce. Now comes the part that can be just as difficult – dividing your marital property.
Along with marital property comes debt. Who will pay the credit card bills? The outstanding student loans? And maybe most importantly, who will pay the mortgage?
Marital property in Tennessee
Marital property means all assets and property acquired during your marriage. A few things do not qualify as marital property, including:
- Property owned by you or your spouse prior to marriage
- Property acquired by you or your spouse in exchange for the property owned prior to marriage
- Capital gains on the property owned by you or your spouse prior to marriage
- Civil damages awarded to you or your spouse, such as medical expenses or victim compensation
- Property you or your spouse received as a gift – even if that gift was given to one spouse by the other spouse
- Property acquired through an inheritance
Equitable distribution of marital property
Tennessee is what is known as an equitable distribution state. If you and your spouse cannot come to an agreement on marital property division on your own, a court will decide how to divide it – in an equitable manner.
The key term is equitable, which does not necessarily mean equal. A judge will consider a number of factors, including:
- Which spouse made the most tangible contributions to your marriage
- The duration of your marriage
- You and your spouse’s retirement benefits
One factor not taken into consideration during the division of marital property is fault.
How is a house “divided equitably”?
A house is typically the largest asset owned by a couple going through a divorce, and can therefore cause quite a bit of contention between the spouses. If children are involved, the custodial spouse will often be awarded the house.
This can lead to problems for both spouses.
You might assume you will use spousal support to continue to pay the mortgage, which is fine – but you will probably need to refinance the home in order to remove your spouse from the mortgage loan.
If both you and your spouse were employed when you purchased the home, the lender used both incomes to qualify you for the loan. You will likely have to refinance the mortgage based on your income alone, which may not be financially feasible.
And if you do not refinance the home right away and your spouse wants to purchase a new home, he will likely have problems receiving financing because his name is still on the mortgage loan of the marital home.
Unfortunately, there is no easy answer to the question of who will pay the mortgage after your divorce. There are many variables involved, and each divorce case will be unique.
An experienced family law attorney can guide you through the legal maze of divorce, property division and child custody – and ensure that you receive the best possible outcome.